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MONICA SHERK v. DAISY-HEDDON (03/13/81)

filed: March 13, 1981.

MONICA SHERK, ADMINISTRATRIX OF THE ESTATE OF JAMES LOUIS SHERK, DECEASED, APPELLANT,
v.
DAISY-HEDDON, A DIVISION OF VICTOR COMPTOMETER CORPORATION V. MICHAEL SAENZ, JUNE SAENZ AND ROBERT SAENZ



No. 12 April Term, 1979, Appeal from Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. 283 July Term, 1974.

COUNSEL

Peter J. Mansmann, Pittsburgh, for appellant.

John W. Jordan, IV, Pittsburgh, for Daisy-Heddon, appellee.

Michael A. Donadee, Pittsburgh, for Michael and June Saenz, appellees.

Shelley A. Bould, Pittsburgh, for Robert Saenz, appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ. Montgomery, J., files a concurring opinion. Lipez, J., files a dissenting opinion.

Author: Cercone

[ 285 Pa. Super. Page 322]

Appellant, Monica Sherk, administratrix of the estate of James Louis Sherk, takes this appeal from the order of the court below, sitting en banc, which denied plaintiff-appellant's motion for a new trial in a products liability case. Appellant presents three questions for our review: (1) whether it was error for the trial court to exclude evidence of the common knowledge in the community concerning the dangers of the product at issue -- a Daisy-Heddon air rifle Model 880, manufactured by the Daisy-Heddon Corporation; (2) whether it was error for the trial court to refuse appellant's request that the case be submitted to the jury on a

[ 285 Pa. Super. Page 323]

    negligence theory, in addition to strict liability; (3) whether it was error for the trial court to grant appellee-Daisy-Heddon's*fn1 motion for a directed verdict on appellant's cause of action which was based on Section 402(B) of the Restatement of Torts. After careful review, we conclude that appellant's first two arguments have merit, but the third does not. We, therefore, reverse and remand for a new trial on the strict liability and negligence counts, but affirm the directed verdict on the Section 402(B) misrepresentation theory.

Plaintiff-appellant, Monica Sherk, filed this action in trespass to recover for the death of her fourteen-year-old son, James, who died on April 7, 1973, as a result of a BB shot to the head accidently inflicted by Robert Saenz, James' friend. The circumstances surrounding James' death are as follows.

In the early part of 1973, fourteen-year-old Robert Saenz, a good friend of James Sherk, received permission from his parents to purchase an air rifle. Robert selected the air rifle from the catalogue of the Alden Company, and ordered a Model 880 "Power King" air rifle manufactured by the Daisy-Heddon Company. In the Alden's catalogue, the "Power King" was pictured along with four other models of Daisy air guns, including the Western carbine, the Daisy Pac-a-long Pump, the Marksmann M-4000 and the Daisy Peacemaker.*fn2 The Daisy trademark was prominently pictured in the catalogue and, with the exception of the Marksmann M-4000, was included in the description of each of the air guns. Nothing in the advertisement indicated that the Power King was more dangerous than the other four models, nor was there any indication that the Power King

[ 285 Pa. Super. Page 324]

    was designed for older adolescents and adults, unlike the other air guns pictured.*fn3

The air rifle arrived in a box marked with the logo of the Daisy-Heddon Corporation and the words "Pump-Up Air Gun." No recommended age range was printed on the box. Inside the carton were two booklets -- one entitled the "Daisy BB Rifle Instruction Manual," the other "How to Operate the Daisy Pump-Up Air Gun." The instruction manual made no specific reference to the "Power King" model but, instead, gave general instructions on the use of Daisy BB rifles. The first page of the manual contained the "Code of the Daisy Rifleman," which was essentially the "ten commandments" for using a BB gun. Rule number six read "Never point a gun at anything you do not want to shoot. NEVER POINT A GUN AT ANYONE." In the text of the instructions, the booklet said in part,

"The spring type BB rifle program develops safety habits in youngsters who have a natural curiosity for guns.

The Daisy Group Shooting Program, like other youth activities, must have leadership and direction. Adult supervision is necessary for organizing the activity, securing the range space and giving instructions. The adult leader need not be familiar with the sport of target shooting. Instead, he or she must be the kind of person interested in working with boys and girls.

The Daisy BB Rifle is a low-power BB gun. The power is limited at the factory by the size spring used in the gun. It is not a high-power pneumatic, gas, pellet or compressed air gun." (Emphasis added.)

The other booklet ("How to Operate . . .") offered more specific instructions on the use of the Power King. In the body of the instructions, this booklet said,

[ 285 Pa. Super. Page 325]

"As the proud owner of a Daisy Pump-Up Air Gun, you have become a part of an American tradition which dates back to the time your great-grandfather was a small boy. Your new Daisy is the result of more than 80 years experience by Daisy in the manufacturing of quality products.

The Pump-Up Air Gun is a new, much more powerful type gun than the traditional Daisy spring-air BB gun and must be treated with great care and respect.

ALWAYS HANDLE A GUN AS IF IT WERE LOADED. 'Handling' means every time you touch your gun. It also means you must never point your gun towards any living thing nor at any part of your own body nor at anything that could be damaged by an accidental shot. Habits which you form in handling your new Daisy will be helpful in the handling of any gun.

The Instruction Manual which was packed with your Daisy tells about the care and safe handling of any gun. Be sure to study the 'Ten Commandments of Gun Safety' printed in the Instruction Manual. It is your responsibility as the owner of this gun to make certain that anyone using it is instructed in proper operation of this gun." (Emphasis added.)

On April 7, 1973, four days after receiving the gun, Robert Saenz, without his parents' knowledge or permission, took the Power King air rifle into the woods behind his home where he and James Sherk took turns shooting at bottles and cans. Prior to this date, Robert had shot air rifles belonging to other people a few times, and had even been hit by BBs on several occasions, but experienced no injury more serious than a black and blue mark where the BB had struck him. (Robert's father also had similar experiences with air guns, and knew that a BB could put out someone's eye.) When the two youths were playing with the air rifle, Robert unintentionally shot James in the head. The BB shot penetrated five inches into James' brain, and James died the next day as a result of his injury.

[ 285 Pa. Super. Page 326]

Appellant introduced evidence at trial of an inter-office memo written by a product evaluator at the Daisy Company showing that the Daisy-Heddon Company was aware of danger of serious injury before the Power King was put on the market. In part, the memo said:

"This is a dangerous gun, it is not a controlled velocity play gun for which we are noted . . .

To get a feeling for just how dangerous this unit is, I have conducted some penetration tests using the 880 as compared with some of our other models.

Attached is a photo of shots fired at a material simulating animal tissue with units that represent different levels of velocity and energy in our product line.

It is easy to note that the penetration possibilities of the 880 of a 3/4 inch depth opens up new areas of vulnerability when this unit is unsafely used. Whereas we now can injure an eye or irritate the skin, we will be able to inflict a dangerous wound with the high velocity 880." (Emphasis added.)

At trial, appellant attempted to prove that Daisy-Heddon was generally known as a manufacturer of air guns that could be used by youths between the ages of eight to fourteen. It was appellant's premise that appellee's "Daisy" logo was viewed as identifying a type of air gun which, although it could blind, it could not kill a person. Therefore, appellant contends that since the "Daisy" logo was so viewed, and because the Power King was an air rifle which differed markedly from the usual line of Daisy air guns in that it could be lethal, the manufacturers should have put a warning on the Power King telling the consumer of the Power King's deadly potential. Although the trial court allowed appellant to introduce evidence which showed how the Saenz themselves viewed the "Daisy" logo, according to their experiences with the gun, the court refused to allow appellant to introduce evidence of the community's view of the "Daisy" logo, ruling this latter fact to be irrelevant. We find this to be error.

[ 285 Pa. Super. Page 327]

The Restatement of Torts (2nd) ยง 402(A)(1965) was adopted by the Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Section 402(A) provides:

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ...


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